(concurring in part and dissenting in part).
While I concur in affirming the findings, I respectfully dissent from setting aside of the sentence.
The military justice system, as it is currently designed and has developed — with its post-World War II philosophy, revisions, and implementation of the Uniform Code of Military Justice — is quite paternalistic in some regards, with its numerous built-in safeguards to protect the individual servicemember in his or her quest to navigate, in his or her best interests, the treacherous waters of military discipline. While there is, of course, absolutely nothing wrong with this approach, I think sometimes we may let it color too much our reading and interpretation of those safeguards. Thus, this dissent is respectfully submitted from a little different perspective than that followed by the majority in this case.
The majority opinion is based primarily on two things: (a) the statements of the appellant and his trial defense counsel that, but for the questioned prohibiting-provision of the pretrial agreement, the defense would have presented “either affidavits or the telephonic testimony” of the appellant’s father and of his “longtime” friend (Record at 271); and (b) a very literal reading of Rule for Courts-Martial 705(c)(1)(B), Manual for Courts-Martial, United States (2002 ed.), which states in part: “A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of:' ... the right to complete sentencing proceedings____” (Emphasis added.) To me, the decision of this Court revolves around the interpretation and application given to the word “complete,” in the context of the case-specific facts and circumstances, as they relate to the “sentencing proceedings” of this case.
Before beginning that discussion, however, I believe the threshold issue is the content and quality of any “waiver” the appellant may have made in this ease. As our senior court stated in United States v. Edwards, 58 M.J. 49, 52 (C.A.A.F.2003):
To the extent that a term in a pretrial agreement violates public policy, it will be stricken from the pretrial agreement and not enforced. See R.C.M. 705(c)(1)(B); United States v. Clark, 53 M.J. 280, 283 (C.A.A.F.2000). Under those circumstances, public policy prohibits the accused from waiving the underlying right or privilege as part of the pretrial agreement. Consequently, when pretrial agreements are challenged based upon alleged violations of public policy, the cases invariably discuss the issue in the context of waiver.
Please bear with me through the following unusually-lengthy excerpt from the record of trial, which I believe is necessary to properly evaluate this issue, as the military judge made inquiry of the appellant and his trial defense counsel concerning the questioned provision of the pretrial agreement:
MJ: Now, let me talk about subparagraph (f), and I talked about this in an 802 telephonically with your counsel because I had concerns about this paragraph. This paragraph states that as consideration for the agreement, the government and you have agreed not to call any off-island witnesses for the sentencing proceeding, either live or telephonically, furthermore, substitutes for off-island witness testimony included — including, excuse me, but not limited to Article 32 testimony, affidavits or letters will not be permitted or considered when formulating an appropriate sentence in this case.
Now, my initial inclination was to not enforce this particular paragraph because R.C.M. 705 subsection (e)(1)(b) [sic] states that certain provisions of a pretrial agreement will not be enforced and among the provisions it lists are those that deprive the accused of the right to a complete sentencing proceeding. However, let me go in a little bit more depth about this paragraph and how it applies in this proceeding.
First off, Lieutenant Abramson, as I understand it, this paragraph, while now *764two-sided, was initially a defense-proposed, condition. Is that accurate?
DC: That’s correct, sir?
MJ: And as I understand it, it was aimed to prevent the government from introducing specific items of evidence in the sentencing proceeding. Is that correct?
DC: Yes, sir.
MJ: Now, as it reads at this point, it is now two-way, also preventing you in return from introducing certain items of evidence.
Let me ask for the record in this case, what specifically is it that you would be presenting that you are now prevented from presenting in this case by that paragraph?
DC: Specifically, sir, we would have been presenting either affidavits or the telephonic testimony of one Mr. Sunzeri, Petty Officer Sunzeri’s father; and, two, Mr. Abatzoglou, who is Petty Officer Sunzeri’s longtime friend.
MJ: Both of those were the subject, were they not, of our witness production motion earlier?
DC: Correct, sir. Yes, sir.
MJ: Very well. Let me ask this, Lieutenant Abramson. Based on that provision and it being initially a defense originated provision in the compromise you reached and also precluding you from introducing those items, tactically does the defense view that as in their best interest that you want this provision enforced,?
DC: Yes, sir, we do.
MJ: Do you concur with that, Petty Officer Sunzeri?
ACC: I do, sir.
MJ: Very well. Based on the posture of this case and the fact that this was a term initially proposed by the defense and based on what the defense has disclosed on the record that they are precluded from presenting in this case in return for this provision and tactically that they believe that is in their best interest and they want this provision enforced under the facts of this ease, while I might normally consider this particular provision to be unenforceable and contrary to the rule and public policy, at this point I find that Petty Officer Sunzeri and Lieutenant Abramson certainly have made a knowing and intelligent balance of the cost-benefit analysis here and believe tactically that it is in the defense’s best interest to have this provision enforced, and I mil, in fact, enforce it.
Record at 270-72 (emphasis added).
This colloquy clearly establishes: that the military judge was keenly aware of the provisions of R.C.M. 705(c)(1)(B); and that the genesis for the questioned pretrial-agreement provision was the appellant and his trial defense counsel, whom, as the military judge surmised, made — after a “cost-benefit analysis” — a tactical trial decision, which they believed would serve the “defense’s best interest[s].” Id. at 272. I do not believe the military justice system has become so paternalistic as to take away from an accused and his or her trial defense the ability — and responsibility — to make such trial decisions and, then, to well live (or suffer) with the consequences of those decisions.
That point, however, begs the primary and central question: By including the phrase “the right to complete sentencing proceedings” in its litany of unenforceable provisions, which — per public policy — may not be waived as part of a pretrial agreement, does R.C.M. 705(c)(1)(B) statutorily preclude the appellant and his trial defense counsel from even making such a choice? Under the specific circumstances of this case, I believe not.
Of the parade of protected rights that R.C.M. 705(c)(1)(B) prohibits from being negotiated away in a pretrial agreement by an accused and his or her counsel, “the right to complete sentencing proceedings” is perhaps the least clear and the most difficult to define. We all either know or have a good feel as to what is meant by “... the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; ... .[and] the complete and effective exercise of post-trial and appellate rights.” But what does “the right to complete sentencing proceedings” actually mean? Somewhat uniquely among that list, it means, I believe, to a large extent whatever an accused and his *765counsel decide that it means in the context of the facts and circumstances in a given case.
I believe that the appellant, in fact, did enjoy his right to “complete sentencing proceedings” in this case, as he and his counsel decided to define it in the appellant’s own best interest. As noted above, the appellant told the military judge that, but for the questioned provision in the pretrial agreement, the defense would have presented in its sentencing efforts “either affidavits or the telephonic testimony” of the appellant’s father and of his “longtime” friend. Record at 271. Both of whom earlier in the trial had been the subject of a successful defense motion for the production of witnesses.
In making that motion, the trial defense counsel offered a synopsis of the expected testimony of both individuals. Appellate Exhibit I at 3^1. While some of the expected testimony might have been useful in the sentencing phase of the court-martial, a reading of the synopsises clearly indicates that the real worth of both potential witnesses on the merits would have been “to bolster PO Sunzeri’s in court testimony and convince the members that he speaks the truth.” Id. at 3. The synopsis for the appellant’s “best friend,” was centered around his ability to testify “that he has never seen or heard of CTM2 Sunzeri possessing, using or distributing illegal drugs.” Id. at 4. Thus, by pleading guilty, the appellant obviated much of the probable usefulness of these two potential witnesses.
While the majority opinion indicates it will not speculate as to whether the testimonies or affidavits of the two potential witnesses would have had an impact on the sentencing authority, I believe that an examination of the appellant’s sentencing presentation is appropriate in our consideration of the completeness of his sentencing proceedings.
In extenuation and mitigation, the defense presented three exhibits. Defense Exhibit A consists of three performance evaluations for the periods ending 15 June 2001, 15 June 2000, and 15 June 1999, reflecting individual trait averages of 3.71, 3.71, and 3.29 respectively. Defense Exhibit B is 12 pages of the appellant’s Enlisted Qualification History (Page 4’s). Defense Exhibit C is the certificate and citation reflecting the appellant’s being awarded the Joint Service Achievement Award.
Additionally, the defense presented the in-court testimony of Cryptologic Technician (Maintenance) First Class (CTM1) Geraldine M. Lanham, USN, a 13-year Navy veteran, who had known the appellant for the past 2 years, and who had been his direct supervisor for the previous 13 months. Among other very positive things, she testified that the appellant was an outstanding performer. Technically very sound, he was always the first to volunteer when something out of the ordinary had to get done. He came in early, stayed late, would willingly work weekends to get the job done properly, and never presented any disciplinary problems, other than occasionally being a little late to work, for which he was very apologetic. While she had no real off-duty social contact with the appellant, CTM1 Lanham indicated that at work the appellant was quiet, kept to himself, and did not appear to be socially active with those with whom he worked, which seemed to cause him to be picked on by others for some of his interests, such as reading comic books. CTM1 Lanham stated that from her close observation of the appellant, she believed that he absolutely had rehabilitative potential. Record at 333-43.
Finally, the appellant made a comprehensive unsworn statement that covers 14 pages in the record of trial, in which he covered not only his “life and times,” but in which he also provided extensive personal information about the offenses of which he had been convicted. Record at 345-59.
It can be argued that the various items of extenuation and mitigation submitted by the defense more than covered what the appellant’s father and his “longtime” friend, whose personal contact with the appellant had “fallen off’ since the appellant had entered the Navy, might have been able to offer in his behalf. Appellate Exhibits IX and X. Of particular interest, as mentioned above, is the fact that both of these potential witnesses were the subject of a successful defense motion for witness production, as early in the trial proceedings the military judge ordered *766the Government to produce both of them. Record at 240.
Thus, with their presence assured, why would the defense offer to deal away their potential testimony, if it was truly deemed to be of such critical importance to the appellant’s best interest? The stated — and only logical — reason being that the defense wanted “to prevent the government from introducing specific items of evidence in the sentencing proceeding.” Record at 271. As the military judge concluded after his inquiry into the issue, as provided above, that the defense “made a knowing and intelligent balance of the cost-benefit analysis” and then made a tactical decision “in the defense’s best interest.” Record at 272. Thus, I believe the appellant, in fact, did enjoy his R.C.M. 705(c)(l)(B)-mandated “right to [a] complete sentencing proceeding!]----” It was a “complete” sentencing proceeding, as he and his trial defense counsel defined and shaped it to serve the appellant’s best interests.
Military justice is truly served with well-litigated eases, which ensure that the system, in fact, works in the best interests of all parties concerned. This was a well-litigated court-martial. As in any hotly-contested case, all parties made tactical decisions reasonably calculated to serve their own best interests. For the process to maintain its complete integrity, parties must be accountable for and live with such tactical trial decisions. To take the approach the majority provides is to, unnecessarily I believe, give the appellant a windfallesque bonus E-ticket ride on the court-martial carousel, as by the provisions of R.C.M. 810(d)(1) and (2), in any rehearing the appellant is protected against the convening authority approving a more severe sentence than was originally approved.3
The Government tried this ease once already. Now the majority opinion sets aside the sentence and requires the convening authority to decide between ordering a rehearing on sentencing or approving a sentence of no punishment. As Justice Benjamin Cardoza offered in Snyder v. Massachusetts: “[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed. 674 (1934). For the reasons discussed above, I believe this court’s decision in this case places an improper and unnecessary weight on the Government’s side of the scales of justice.
. Ironically, under different facts — such as when the originally-awarded sentence was greater than the original pretrial agreement, and the pretrial agreement for some reason is inapplicable at a rehearing — in saving an appellant from him or herself, such as is being done in the majority opinion in this case, an appellant might actually be potentially subjected to a more severe sentence than was originally approved. See R.C.M. 810(d)(2).